Time to limit ministerial discretion in the immigration system

By Shawn Rajanayagam

5 September 2018 — 11:54pm

Peter Dutton’s use of ministerial discretion to grant visas to two foreign au pairs raises large questions about the propriety of his actions as minister for immigration. But, more importantly, the ongoing debate presents Parliament with an opportunity to introduce real limits on ministerial discretion in the immigration system so as to prevent those discretions from being used inequitably and unfairly.

French au pair Alexandra Deuwel was held in detention until Peter Dutton intervened.Credit:Facebook

In granting visas to the au pairs, it seems that Mr Dutton exercised a power under the Migration Act that permits the Minister for Immigration to grant a visa if satisfied that doing so is in the public interest. Like the power Mr Dutton exercised, many other significant powers contained in the Migration Act are conditioned on the minister’s satisfaction that a particular course of action is in either the public interest or the national interest. These include the power to allow a person who arrived in Australia by boat to apply for a visa, and the power to revoke a residence determination, thereby moving people living in the community to immigration detention. The choice whether to exercise these discretions often has grave consequences, and therefore must be made in an even-handed way.

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The courts have signalled that they are very unlikely to find that a decision based upon the minister’s assessment of what is in the public interest or the national interest is unlawful. The supposed precondition for the exercise of these powers is therefore essentially no precondition at all. Nor is there any other person or body who has oversight of the exercise of these powers, given the limited jurisdiction of independent review tribunals and the difficulty of accessing information as to ministerial discretion. Practically unlimited powers of this kind are easily abused.

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The Senate inquiry into Mr Dutton’s conduct isn’t the first time that the spotlight has shone on ministerial discretion in migration, and it’s not only lawyers and human rights advocates who have expressed their concern. As it turns out, several former immigration ministers were uncomfortable with the amount of power the Migration Act gave them.

Home Affairs Minister Peter Dutton won't say why he used his ministerial discretion to grant a visa to an au pair, whose eVisitor visa was cancelled at Brisbane Airport in 2015.Credit:Alex Ellinghausen

Robert Ray, minister for immigration under Bob Hawke, noted in 1989 that one problem with ministerial discretions is that “those who tend to get access to a Minister are members of Parliament and other prominent people”. In 2004, a bipartisan Senate committee inquired into the issue of ministerial discretion in migration, recommending that ministerial discretions should be retained, albeit as an “ultimate safety net” and only if steps were taken to ensure greater transparency. And in 2008, then minister for immigration Chris Evans told a Senate committee that the Migration Act gave him the power to “play God”. Despite these pleas for change, ministerial discretions in migration law have grown exponentially over the last 30 years.

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The Senate inquiry should not be seen simply as an opportunity to conduct a campaign against Mr Dutton. We must remember that many of the ministerial discretions in the Migration Act were introduced when the ALP was in government. As Liberty Victoria’s Rights Advocacy Project pointed out in its 2017 report on the growth of ministerial discretion in migration law, it was during the late '80s and early '90s, under the prime ministerships of Bob Hawke and Paul Keating, that these powers – the “God powers” – began to increase in prominence. Despite occasional lamentations from its own ministers for immigration, the ALP has done little to minimise the obvious potential for misuse.

So, while much of the media coverage has sought to demonise Mr Dutton, we must keep in mind the very real possibility that a Minister for Immigration of a different political bent would not necessarily approach these God powers in a fair and responsible way. Seen in that light, the problem of ministerial discretion is not to be equated with a particular minister or political party; the problem, rather, is the very existence of unrestrained discretion in a policy area that has such significant effects on human lives.

Judging the appropriateness of Mr Dutton’s decisions in the au pair cases is not enough. Our elected representatives must seize this rare opportunity to go deeper, and conclude that untrammelled ministerial discretion has no place in our immigration system. If ministerial discretion is to play any part in the migration regime, it should only be exercisable in cases of last resort to ameliorate hardship, and must be subject to a robust system of checks and balances to guard against misuse. Without a system based on transparency and equal treatment, the prospect and effect of the Minister for Immigration playing God is simply too great.

Shawn Rajanayagam is a lawyer. He is one of the authors of Liberty Victoria’s report “Playing God: The Immigration Minister’s Unrestrained Power”.